Top barrister Sally Gearin invokes Kumanjayi Walker case in backing NT’s proposed child safety reforms

The Northern Territory’s most senior female lawyer has invoked the case of Yuendumu teenager Kumanjayi Walker to back the Finocchiaro Government’s controversial proposed child safety reforms.

As debate rages over the proposed changes to child protection laws, barrister Sally Gearin has argued that child safety must take precedence over cultural placement considerations, saying vulnerable Aboriginal children have been left in dangerous environments for too long.

In her personal submission to the NT Parliament’s scrutiny committee, Ms Gearin backs the CLP Government’s controversial proposed changes to the Care and Protection of Children Act, which would introduce a new “universal principle” placing child safety above all other considerations when making decisions about at-risk children.

The reforms, announced in the wake of the alleged murder of five-year-old Kumanjayi Little Baby in Alice Springs, have sparked fierce debate, with critics arguing they are being rushed and could weaken protections designed to keep Aboriginal children connected to family, culture and Country.

But Ms Gearin, the first woman admitted to the Bar in the NT, said it was “almost Kafkaesque” that lawmakers were being forced to justify making child safety the primary consideration in child protection decisions.

“I have heard no argument as to why it would not be,” she said.

“Rather, the objections I have seen are that the safety criteria was rushed, not thought through, culturally insensitive and or because of the conditions Aboriginal people are living in.

“These objections simply do not address the reason why safety should not be the primary criteria.”

Ms Gearin pointed to the life of Kumanjayi Walker, the 19-year-old Warlpiri man from Yuendumu who was fatally shot by police officer Zachary Rolfe in 2019.

Mr Rolfe – who has since left policing – was acquitted of murder, manslaughter and violent act causing death following a Supreme Court trial in 2022.

Ms Gearin argued that Mr Walker’s troubled childhood demonstrated the consequences of child protection failures.

“As I understand the facts of that situation, KW was born to an alcoholic mother and had foetal alcohol syndrome,” she wrote.

“He was left as a young child in his community where he was neglected and abused.

“He was not taken into care but rather passed from one dysfunctional relative to another dysfunctional relative in his community and he received no assistance, diagnosis of either his circumstances or any treatment.”

Ms Gearin said Walker “progressed from that environment essentially illiterate” and began committing crimes at a young age before he was eventually incarcerated in a juvenile justice facility.

“It was inevitable that he would end up where he did either because of crime or lack of control because of his FASD,” she wrote.

“He had a stamp on his forehead from the moment he was born.

“He was not alone as a Territory child who was not cared for but left to fend for himself as a little bloke in those unsafe circumstances.

“If safety was the criteria for removal of a child back then Kumanjayi Walker may well have had a different life and become a spokesperson for his people.”

Ms Gearin also warned child protection authorities effectively stand in the role of a parent when they become aware a child may be living in unsafe circumstances.

She argued that if a department identifies a child as being at risk but leaves them in that environment, it could face future legal liability if the child is harmed as a consequence.

Ms Gearin pointed to the case of Western Australian man Dion Barber, who was awarded $2.85 million in damages after the state failed to protect him from ongoing sexual abuse as a child.

Despite reporting the abuse and being briefly removed from home, Barber was returned to the care of the same perpetrator and continued to be abused.

About 150 submissions are being considered by Parliament’s Legislative Scrutiny Committee as it examines the Government’s proposed reforms.

Ms Gearin, who specialises in family law and human rights law, rejected suggestions the reforms were culturally insensitive.

Rather, she argues the proposed reforms are consistent with Australia’s obligations under the United Nations Convention on the Rights of the Child and are not inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples.

The veteran lawyer – who is also the NT’s Legal Aid Commissioner and Chairperson of the NT Liquor Commission – also said it was “ironic” that many wealthy Aboriginal parents do not choose to live on country or raise their children there.

“Our Aboriginal politicians and spokespersons are a good example of this,” she said.

“I do not mean this as a criticism of them, but an indicator of their reluctance to expose their children to an unsafe life.”

Ms Gearin, who joined the NT Attorney-General’s Department in 1986, helped establish Darwin’s first women’s refuge in 1988 and has spent decades working on domestic violence, family law and child protection issues.

Chief Minister Lia Finocchiaro said the government would not back down from its reforms.

“We are unapologetic in our approach,” she said.

“I cannot understand how anyone can argue with making the safety of a child the number one priority, and to those people who think that’s what the old act did, they’re just absolutely wrong.

“We know that Territory kids need the very best chance in life and at their most vulnerable is when we need to be protecting them the most and that’s what our reform does.”